Lukkes v. United States

Decision Date17 May 2022
Docket Number5:20-CV-5079-CBK
PartiesCONTESSA LUKKES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — District of South Dakota

CONTESSA LUKKES, Petitioner,
v.

UNITED STATES OF AMERICA, Respondent.

No. 5:20-CV-5079-CBK

United States District Court, D. South Dakota, Western Division

May 17, 2022


MEMORANDUM AND ORDER

CHARLES B. UNITED STATES DISTRICT JUDGE

I. BACKGROUND

Contessa Lukkes (“petitioner”) pleaded guilty before this Court in 2020 to Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. §§ 1349, 1344; three counts of Bank Fraud violative of 18 U.S.C. § 1344(2); two counts of Aggravated Identity Theft, violation of 18 U.S.C. § 1028(A)(a)(1); and Theft or Receipt of Stolen Mail, in violation of Theft or Receipt of Stolen Mail. 5:18-CR-50139-JLV, (“C.R.”)[1] docs. 85 (Change of Plea Hearing), 87 (Report and Recommendations on Change of Plea), 89 (Order Adopting Report and Recommendations). United States District Court Judge Jeffrey Viken ultimately sentenced the petitioner to 33 months of imprisonment, followed by three years of supervised release, for the Conspiracy to Commit Bank Fraud, Bank Fraud, and Theft or Receipt of Stolen Mail convictions, all to run concurrently; followed by a 24 month imprisonment for the first Aggravated Identity Theft conviction, followed by three years of supervised release (to run concurrent to all other terms of supervised release); and finally 24 months of imprisonment on the second Aggravated Identity Theft conviction, followed by three years of supervised release (to run concurrent to all other terms of supervised release), with each Identity Theft conviction running consecutive to one another and to all other sentences. C.R. doc. 110. She is currently incarcerated at

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Federal Correctional Institute Waseca, in Minnesota, with an anticipated release date of September 22, 2024.

Ms. Lukkes appealed filed an appeal with the United States Court of Appeals for the Eighth Circuit, C.R. doc. 133; however, the appellate court granted the United States' motion to dismiss. C.R. doc. 152. After denying her petition for rehearing by the panel, C.R. doc. 158, the petitioner received the Circuit Court's mandate on September 8, 2020. C.R. doc. 160. Three and a half months later Lukkes filed this timely Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 of the Antiterrorism and Effective Death Penalty Act of 1996. All six of her claims revolve around purported ineffective assistance of counsel against Mr. Ellery Grey, under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny, ranging from being induced into a guilty plea (despite her knowing and voluntary acceptance of guilt before this Court), to frustrations with enhancements applied to her advisory guideline range at sentencing. Upon initial review, this Court finds none of the claims meritorious and holds that this motion should be denied.

II. DISCUSSION

A. Standard of Review

To support a claim of ineffective assistance of counsel, a two-prong test must be met. Ms. Lukkes must show that her trial counsel's performance was constitutionally deficient and that she was prejudiced as a result. Dorsey v. Vandergriff, 30 F.4th 752, 757 (8th Cir. 2022). See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The petitioner must prove prejudice by showing ‘“that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Donelson v. Steele, 16 F.4th 559, 570 (8th Cir. 2021) (quoting Strickland, 466 U.S. at 694). In the context of a guilty plea, petitioner must show that “but for counsel's errors, [Lukkes] would not have pleaded guilty and would have insisted on going to trial.'” United States v. Sisk, 999 F.3d 631, 635 (8th Cir. 2021) (internal quotation marks omitted). See Fast Horse v. Class, 87 F.3d 1026, 1028 (8th Cir. 1996) (“When ‘it is easier to dispose of an ineffectiveness claim on the ground of lack of

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sufficient prejudice, [that] course should be followed.'”) (quoting Strickland, 466 U.S. at 697).

The heavy burden of establishing ineffective assistance of counsel is on the petitioner. Langford v. United States, 993 F.3d 633, 637 (8th Cir. 2021); Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019). “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

B. Whether Lukkes' Pleas Were Knowing and Voluntary

First, petitioner appears to argue her trial counsel was constitutionally ineffective in encouraging her to plead guilty under the false understanding of her likely sentencing range. Lukkes seems to indicate that had she known the likely range of her sentence, she would not have pleaded guilty. The Court strains the pro se filing to assert her plea was not knowingly and voluntarily given because of ineffective counsel. See MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE, doc. 1 at 1-30.

Petitioner's waiver of her Constitutional right to insist the charges against her be tried to a jury can only be waived by a guilty plea if it was done “knowingly and voluntarily.” United States v. Grady, 931 F.3d 727, 729 (8th Cir. 2019) (quoting United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc.)). The United States Supreme Court has set forth the standard as to voluntariness:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g bribes).

Brady v. United States, 397U.S.742, 755 (internal quotation marks omitted omitted). This Court takes great care in ensuring all guilty pleas entered are knowing and voluntary. Such care was taken in this matter. On November 22, 2019, petitioner Lukkes signed a plea agreement, agreeing to plead guilty to: (1) Count I of the Second Superseding Indictment, Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C.

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§§ 1349, 1344; (2) Counts II, IV, and IX of the Second Superseding Indictment, each charging Bank Fraud, in violation of 18 U.S.C. § 1344(2); (3) Counts XVI and XVII of the Second Superseding Indictment, each charging Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A(a)(1); and (4) Count XXI of the Second Superseding Indictment, charging her with Theft or Receipt of Stolen Mail, in violation of 18 U.S.C. § 1708. PLEA AGREEMENT, C.R. doc. 80. In the Plea Agreement, the petitioner acknowledged the statutory maximum sentences she faced on each count. Id. On the same day, Lukkes signed a factual basis statement agreeing that the alleged facts were true. See STATEMENT OF FACTUAL BASIS, C.R. doc. 81. In the factual basis statement petitioner admitted to the underlying conduct substantiating these counts of conspiracy to commit bank fraud, bank fraud, aggravated identify theft, and stealing mail.

But her agreement to the plea agreement and factual basis is not all Lukkes provided to this Court as indicia of her actual guilt to these multitudes of crimes. At the change of plea hearing on December 6, 2019, before United States Magistrate Judge Daneta Wollman, petitioner testified, under oath, that the factual basis statement was true. See TRANSCRIPT, C.R. doc. 129. And to ensure these guilty pleas were being entered knowingly and voluntarily, the Court asked Lukkes, under oath, whether anyone has made threats or promises to coerce her into pleading guilty. She answered, “[n]o.” Id. at 5. On December 11, 2019, Judge Viken adopted Judge Wollman's Report and Recommendation and accepted Ms. Lukkes' guilty plea. C.R. doc. 89.

Petitioner's representations during the change of plea hearing “carry a strong presumption of verity and pose a formidable barrier in any subsequent collateral proceedings.” Thompson v. United States, 872 F.3d 560, 566 (8th Cir. 2017) (internal quotation marks omitted). This Court advised Lukkes of the consequences of pleading guilty, and carefully ensured that her guilty pleas were knowing and voluntary. Her subsequent collateral attack does not venture close to whittling the strong presumption from which her prior guilty pleas were taken (while under oath), regardless of supposedly ineffective counsel at the time of her change of plea.

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As the United States Supreme Court observed in Brady v. United States, 397 U.S. 742, 756-57 (1970):

Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted . .. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action.

Petitioner faults trial counsel for offering supposedly inaccurate likely sentencing ranges. But in her plea agreement she acknowledged the statutory maximum sentences she faced. And at her change of plea hearing, Ms. Lukkes acknowledged, under oath, that she understood the statutory maximum sentences she faced on the counts to which she was pleading guilty. See C.R. doc. 129. Petitioner's guilty pleas waved this claim. Lukkes testified under oath at the change of plea hearing that the factual basis statement was true. The factual basis statement set forth that petitioner engaged in repeated acts of bank fraud, that she conspired...

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